September 13, 2007

... I'm not going to pretend to have penetrated in the last 24 hours the mystery of why UC Irvine Chancellor Michael Drake tore up the contract Tuesday that he offered Duke University law professor Erwin Chemerinsky a month ago to become the first dean of UCI's law school.

But make no mistake: There is a mystery to be solved. And the answer goes far, far beyond Drake's statement Wednesday that he has "come to the very difficult conclusion that Professor Chemerinsky is not the right fit for the dean's position at UC Irvine at this time."

Who got to Drake, who's been chancellor since mid-2005, and told him that Chemerinsky, a well-known constitutional scholar and acknowledged liberal commentator, isn't the guy for UCI?...

Did a deep-pocketed cadre of conservative donors put the heat on Drake to rescind the offer?

Or did the impetus for the Dump Chemerinsky movement originate with the UC system's Board of Regents, which would have to approve the contract?...

You may think I'm avoiding the obvious, but I'm not: Yes, I know conservative Orange County businessman Donald Bren has pledged $20 million to the new law school and will have his name on it....

Could be, but it's almost inconceivable to me that UCI would offer Chemerinsky -- or anyone -- the job without, if only as a courtesy, telling the man the school is named after....

With a mystery to be solved, the bad press for the nascent law school will rage on and on.

And there is another mystery. The school had a huge interest in an amicable separation with Chemerinsky. Could those who are acting for the school have failed to perceive that there would be devastating bad press? The school has trumpeted its ambitions to become a top tier school. I have to assume they tried to avoid an ugly public breakup. Unless they are shockingly incompetent, there must have been an attempt to reach an agreement with Chemerinsky to create a public appearance that would flatter both him and the new law school. They could have papered over the discord with a nice statement that Chemerinsky wished UCI well but had come to appreciate the depth of family's attachment to Duke and that UCI regretfully accepted that decision and remains convinced that he would have made a wonderful dean. So why did the nastiness boil over where we could see it?

In a showdown over academic freedom, a prominent legal scholar said Wednesday that the University of California, Irvine's chancellor had succumbed to conservative political pressure in rescinding his contract to head the university's new law school, a charge the chancellor vehemently denied.

Erwin Chemerinsky, a well-known liberal expert on constitutional law, said he had signed a contract Sept. 4, only to be told Tuesday by Chancellor Michael V. Drake that he was voiding their deal because Chemerinsky was too liberal and the university had underestimated "conservatives out to get me."

Chemerinsky came away from the experience ready to attack. Why? Is it possible that Drake wanted this? Notice it's not the "conservatives" -- whoever they are -- who are saying political things about Chemerinsky. It's Drake, making assertions about unnamed individuals who are interfering with Drake's preferences. I feel sure that Chemerinsky would not misquote Drake. If there were nothing more from Drake, I would suspect that he and Chemerinsky were working together for a more independent UCI law school.

But:

Later Wednesday, however, Drake said there had been no outside pressure and that he had decided to reject Chemerinsky, now of Duke University and formerly of the University of Southern California, because he felt the law professor's commentaries were "polarizing" and would not serve the interests of California's first new public law school in 40 years....

Drake said he worried that the controversy had the potential to harm the university's reputation. "It was the most difficult decision of my career," he said in an emotional interview, his voice at times quivering.

He sounds quite pathetic.

Chemerinsky and Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in the Los Angeles Times, the same day the job offer was made. In it, Chemerinsky asserted that Attorney General Alberto Gonzales was "about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court."

But Drake and Chemerinsky split sharply on what role the article played in the decision to fire the incoming dean and whether academic freedom was at stake.

"Shouldn't we as academics be able to stand up for people on death row?" Chemerinsky said.

Drake said "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter."

Another political piece! The procedures leading up to the imposition of the death penalty are a quintessential legal issue. "What he said doesn't matter." Who believes that?

42 comments:

No comments, yet... What's the sex angle? Aren't Karl Rove's fingerprints all over this? This topic seems unlikely to generate large numbers of Comments without intense troll activity. As a Law Professor that might be frustrating, but as a Conceptual Artist, I have a feeling you're okay with it. Your September 11 WTC memorial spotlight photo is fantastic, by the way.

Yachira....NO. He is much more a legal scholar than in anyway a clown. Geeze, even I've heard of him.

There was a time that I hope returns when the very best and brightest academics wrote for public consumption. They did so because they have a particular insight and people talked about what they wrote. It was good.

So the professor talks about the death penalty and the then attorney general's ideas (or lack thereof). I'm thinking what can be more important than this? ... and giving Alberto a "fast track" just seems at odds with the importance. So he writes and obviously a few people go ballistic about it.

So the question now is, that this deal is over and he remains at Duke, what was "threatened" here? funding? continuted funding? expanded giving if he is removed? what. there had to be something.

I don't think "clown" is the correct description for Erwin, indeed, his views seem fairly "mainstream" in academia and certain sectors of the intarwub, anyway.

Personally, I find the notion that Fundy Christians who are trying to push the mainstream the other direction are as dangerous as Islamists to be severely flawed, but again, it's not uncommon. The kind of thing you'd write to be accepted by the cool kids.

The part that I don't understand is what changed. What new information about Chemerinsky emerged into the public domain between the hiring and firing? I'd understand if they had decided they didn't want him, and had never offered the gig, but they did, so there surely has to be some accounting for why they changed their mind.

Yachira - his scholarly work is a lot better and a lot harder to discount than his extracurricular activities. He's certainly not a clown, and is very accomplished. Just wrong. I tend to agree that the extracurricular activities foreclose "distinguished" - his non-scholarly writing that I've read is invariably quite poor, which makes it all the more baffling. Still, a law school presumably hires him qua a scholar not qua an editorialist.

If the offer was tendered with the agreement between the parties that there would be no political editorializing, then I think that Drake might be in the right here.

Please note that I am not saying such an agreement would have been wise to pursue or to engage in. However, if it existed, then both sides needed to adhere to it.

While you are right, Ann, that writing on the death penalty involves legal issues, it is a topic where the legal issues are deeply entwined with political issues. But writing that a regulation is "mean spirited" is not legal analysis, it is political posturing. This does not sound like legal analysis, either:

"Those who favor the shorter statute of limitations are frustrated by the long delays before executions are carried out. But Gonzales' move is not about preventing delays; at most, it speeds things up by six months. It is about preventing some inmates from having a habeas corpus petition heard at all."

Legal analysis is about putting motivations in the mouth of the Attorney General? I do not agree.

The Chemerinsky op-ed is at that link. I agree with his stance in the op-ed. And I disagree with the idea that there should have been a need for a 'no political op-eds' agreement for him to get the job. However, if there was such an agreement, then it seems pretty clear to me that this op-ed violated it, and I would not blame Drake for thinking that if he already is blowing off the terms of our agreement, then it is better to call the whole thing off.

"This spring, I argued a case in the Supreme Court challenging a six-foot tall, three feet wide Ten Commandments monument that sits between the Texas State Capitol and the Texas Supreme Court."

"The religious right is the enemy of freedom. That's why the launch of DefCon: The Campaign to Defend the Constitution is so important. It seeks to counter the religious right, to alert the public to the dangers and risks posed by the growing fundamentalist influence in our nation..."

He strikes me as more ACLU type activist than law professor. I can understand why they withdrew the offer.

Chemerinsky has been 'out there' in so many highly visible instances thatthe folks at UC Irvine must be deliberately obtuse. He's no obscure academic. Like HD I even know who he is and where he is coming from (ideologically speaking). I've got to believed Bren yanked Drakes' chain.

Those dumping on Chemerinsky as a legal scholar are off base. Chemerinsky is no different, really, than a lot of well-known and quite accomplished lefty law professors. In terms of his academic standing, politics and extra-curricular activity, he's in the same company as Sunstein, Ackerman and Tribe, and a cut above Toobin and Rosen.

Whether he would have made a good dean is a different matter. The dean's job is to raise money and improve the "standing" of the school. The latter basically means recruiting faculty who can contribute to the school's "reputation" and attract a student body and potential employers to it, while also doing what he can to get rid of the inevitable dead wood on the tenured faculty. There's no reason to suppose that Chemerinsky wouldn't have been at least as good as any other prominent legal scholar at building up the "standing" of the school. That leaves fundraising as a potential problem. If the current or anticipated donor base of this school is skewed in some way, it wouldn't make a lot of sense to select a dean who would cut against that grain. UCI gets money from the State of California (a Dem-leaning dean must be the norm in the UC system, as it is everywhere else; that's not likely to have been a problem). If it was potential problems with private fundraising that led to Drake's about-face, it should have been obvious from the beginning of the search for a dean.

Ann says: "Unless they are shockingly incompetent, there must have been an attempt to reach an agreement with Chemerinsky to create a public appearance that would flatter both him and the new law school." Well, the guy at the center of this mess (Drake, not Chemerinsky) is an academic bureaucrat, and "shocking incompetence" seems the likely explanation.

Given Irvine's location could it also be true that one way it is seeking a reputation is by drawing in top conservative leaning students?

Orange County is very Republican. A UC would serve the surrounding community, for the most part, which is filled with the newly rich, very intelligent, and mostly conservative.

As another law school it would be without distinction and would be competing with students who are very mindful of rankings and would prefer a more established school. All things being equal there's no reason, other than being near home, that a high quality applicant would attend Irvine.

A public university that consciously avoids the more explicit left-leaning of other schools might be just enough of a distinction to draw a certain kind of student.

Would this then qualify as diversity emphasis within the UC system as a whole?

Would hiring a moderate or conservative dean be much more of a way to advance in rankings than by becoming just like other law schools?

From a faculty perspective this may have been a tragedy. From a student applicant perspective this might spark a new look at a school that was being written off as yet another 'liberal' establishment.

What's with the implicit and unquestioned assumption that a notorious con law professor and cable TV crime show talking head ipso facto makes for a cracker jack university administrator? Where does that come from? What justifies that belief?

Zeb - whatever the answer to that might be, I don't think it's relevant. What's relevant is that UCI evidently believed it enough to offer him the position in the first place. The issue (for me, at least) isn't the decision to hire him, it's the sudden change of mind.

This is my explanation of the mystery. LA people, especially liberals in academia or entertainment, look down on Orange County in horror as a bastion of right wing Christianist nuts. No matter that the GOP is losing all the time to "decline to state" and that liberals dominate the haute monde of OC as well.

So my theory is the new dean loved/hated the job offer, and in order to preserve his liberal bona fides, came out with guns blazing in his latest op-ed. He wanted to preserve his independence, and he did, and is now a hero. In addition, he does not have to defend his decision *shudder* to travel south on the 405 to work. ("No, really, there's some really cool people there!")

Sounds like a backwater university in thrall to the Stalinist right. No defenders of freedom of thought them.

This is the type of political filtering right wing has been after for a long time with their campaigns to drive liberals from academia. "Defund the left" has been a ralying cry of con's for a couple decades now.

Again, this action is like the Communist Party in Red China or elsewhere where loyalty to the reigning ideology is a prerequisite to employment and advancement.

Of course, some conservatives here reflexively go on the attack. Others, to their credit, defend freedom of thought and expression.

The knob who wrote this probably believes that the US Government was complicit in the WTC incident on 9/11. Basically, you can't avoid these conspiracy theorists.

Let's face it. Chermerinsky cut his own throat. He has a big mouth and no sense of propriety, and if he wants to write what ever he wants to write whenever he wants to write it, he should be able to do that ... just not as the dean of a law school.

This is not about ideology. This is about a little bombastic, opinionated self-indulgent man who can't keep his mouth shut and is not fit to be the dean of a law school.

Chererinsky deserved to be fired, and I salute Drake for having the cojones to do this to Erwin.

"This is about a little bombastic, opinionated self-indulgent man "--Paul

He's actually taller than you might think. I've never taken a single class of his, but I've seen him out and about when he used to live here. Friends of mine, who know him very well and taken his classes, have never had anything bad to say about his personality or temperament.

But, that doesn't mean he's qualified for the job. Insubordination is still insubordination, whether it's engaged in by a nice person, or not.

Drake said "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter."

Any new hire that pissed on my leg like that would be fired too. However competent he may be, he's demonstrated he's too immature for the job.

If Chemerinsky had any ethics he would have either declined the job or stopped playing polemicist.

Aha! The dirty little secret revealed by David Horowitz at Front Page Magazine is that Chemerinsky is part of the legal team representing Rachel Corrie's estate against Caterpiller. Apparently Chemerinsky has no cerebral impediments to making the argument with a straight face that Caterpillar is of course liable because it knew or should've reasonably known that the heavy equipment they sold to Israel would be used to crush Palestinians and/or their liberal young female American protester minions. And it was that thing in particular that was too much for Drake at UCI to bear.

It seems odd to the point of notable that conservatives are worked up over a case of lefty-on-lefty offense. That conservatives are dragged in with no evidence as the source of blame is no surprise. But the compulsion conservatives feel and act on to protect people who actively work to hurt conservaitves is puzzling.This guy was fired because he made his employer nervous. suddenly we see his pal Hugh and other lawyers circling the wagons and tellilng the rest of us on the right we have to rise and defend a guy who works to help terrorists, keep federal judges from being hired, and lies about elections.I fail to be impressed. And I fail to perceive why I should lift the smallest finger for a guy like this at all. Actions have consequences. I will defend to the death this guy's right to be a jerk in the public square. I will also defend the right of his employer to fire him.

Frontiers of Faith and Science: I agree in principle, the good 'ol Employment-at Will doctrine, but my guess is that the conservatives are attuned to the aspect of his being not hired/fired for having political beliefs that the employer decided it doesn't like. Apparently this is something conservatives in academia get crosswise about, and are in sympatico with other victims of it, regardless of the who/why particulars.

So Chemerinsky is "brillant" even though he is wrong about practically every constitutional issue.Can someone explain that to me?Under that logic Gene Roddenberry is wrong about space physics but nevertheless is a "brilliant" astrophysicst.About his "fairness" or "honesty".I saw him propose in the 2000 election that the best way to solve it was have Florida vote over.A lie and he knew it.He also presented himself as a neutral expert, not disclosing that he was an unpaid advisor to Gore. Thus another lie.The guy believes it is okay to have the judicary branch impose one's individual foreign policy beliefs on the US, by his suing Catipillar.Did you hear him say anything about the Duke "rape" case?Hear his opinions about filibusters? Under Clinton, they are unethical with no historical precedent.Under Bush, they are a valuable tool to prevent the majority from abusing the minority.So again, someone please explain how some one can be brilliant and wrong? My gut feeling is that only in the law profession can one be "brilliant" and wrong at the same time.